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Cooke, Charles S 
The Governor 


The James Sprunt Historical Publications 


The North Carolina Historical Society 


VOL. 12 

No. 1 


The Governor, Council, and Assembly in Royal North Carolina 
C S* Cooke 

Land Tenure in Proprietary North Carolina 
L. N, Morgan 

fames Sprunt Historical Monograph 



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VOL. 12 No. 1 


The Governor, Council, and Assembly in Royal North Carolina 
C 5. Cooke 

Land Tenure in Proprietary North Carolina 
L. N. Morgan 








CAROLINA ........ 7 






Separated from the home country by an expanse of water of 
some three thousand miles, the colonists of North Carolina soon 
learned that upon themselves and not upon England must they 
depend. It was simply impossible for any government, certain- 
ly for any European government, to make the frontiers in Amer- 
ica places of safe residence, and hence the necessity, early recog- 
nized by the colonists, for self-reliance. In the nature of things, 
these colonists that inhabited North Carolina, who were fron- 
tiersmen in the strictest sense of the word, felt government more 
in its burdens than in its benefits, and only the simplest form 
of it, therefore, was long tolerable. This was true of North 
Carolina more than in the other colonies, perhaps, as will be 
seen when it is remembered that after the terrible massacre by 
the Tuscaroras in 1711, it was from the neighboring colonists in 
South Carolina that the help came that saved the colony from 
utter destruction, and that from the government in England, 
instead of help, came a requirement that rents for land should 
be paid in coin and not in commodities, as hitherto. The result 
was, that taking lessons from the Indians, these frontiersmen 
soon became no mere respecters of persons, and learned that 
even the divinity that hedges in a king could not stop a well-di- 
rected bullet. In a word, frontier life in North Carolina was 
a school for republicanism. 

And so with the continued struggle with the British our 
records show indisputably that resistance to oppression was at 
the bottom of all these troubles, and that in every case where 
violence was resorted to, troubles that, covering so many years 
and such a wide extent of territory, and coming so closely to- 
gether, one following directly upon the heels of the other, are 
not to be viewed as separate, casual, sporadic, isolated outbreaks, 

*This study won the first prize offered in 1912 by the North Carolina Society 
of Colonial Dames of America. 


but as a connected series, similar in their nature, akin both in 
origin and development. Their history, like that of events gen- 
erally in the colony, shows that the people of North Carolina, 
when occasion demanded, were quite given to force and violence, 
though not mere lawless rioters who loved strife for strife's 
sake, and preferred violence to peaceful measures. On the con- 
trary, there was much method in their madness, and cool, de- 
liberate system in their force. 

The salient points that strike the student, in an examination 
of their precedents, with more force than any others, are : 

(1) That North Carolinians, from their earliest days, relied 
upon the known and unchanging texts of written laws without 
any deviations, and not like their English ancestors, upon un- 
written law with its corollaries and incidents, always more or 
less uncertain and varying, and always more or less flexible. 
"Our charter still exists," was their slogan from the start to 
finish, from the first Royal Governor to the last. In the face 
of the first they flung their charter as the supreme law of the 
land to which all other things, animate or inanimate, must 
yield, and so it was with the others, one after another, until not 
even a shadow of Royal Government was left in North Carolina. 

(2) That whenever, in their opinion, speech had been ex- 
hausted, and action was necessary, they did not hesitate to use 
violence to prevent infringements upon their rights, real or 

Few colonies could show a more consistent discontent, more 
bitter party feeling and personal hostility than did North Car- 
olina. Even more than its neighbors it suffered from foolish 
laws and injudicious instructions, as well as from bad govern- 
ors. To the rulers in England and to the Board of Trade it must 
have seemed a hot-bed of bickering and discontent, yet were the 
full truth known, as it cannot be for the lack of indisputable 
evidence, it might be seen that this discontent was due to the 
attempts of a body of poor but honest settlers to get the most of 
the circumstances in which they were placed, despite the policy 
of the rulers in England and the self-seeking activities of their 


An understanding of these conditions is essential to follow 
closely the differences which sprang up between the colony of 
North Carolina and its mother country and which form the 
nucleus around which the history of the Royal period is woven. 

After North Carolina became in 1728 a royal province, it 
was governed by a system that was very like that of the mother 
country. The king of England was, of course, sovereign in every 
portion of the province, and to him was due the obedience of the 
people, and their annual payment of six shillings, three pence 
for every hundred acres of land. The crown delegated its au- 
thority and prerogative to a governor, but retained the power of 
repealing in council any law enacted by the provincial assembly. 

The governor was the fountain from which flowed both civil 
and military promotion. The sheriffs, judges, and justices of 
the peace were the creatures of his appointment and removable 
at his pleasure, as were all the officers of the militia. He nom- 
inated and procured the appointment of all the members of the 
council for North Carolina, which constituted the upper house 
of the legislature, and corresponded its functions to our present 
senate. No bill could become a law without the concurrence of 
this body, while the governor also possessed the power to veto 
any act upon which both houses were agreed. The lower house, 
the assembly, was chosen by the free-holders who were in pos- 
session of fifty acres of land. There had been a statute for the 
equalization of representation in the assembly, but it was dis- 
regarded or repealed, for Governor Tryon, in a letter to Lord 
Shelburne in 1767, said that the counties of Old Albemarle at 
that time sent five members, Bertie three, and all other counties 
two each. When the members of the assembly were chosen by 
the people, they usually retained their seats year after year 
until the governor saw fit to dissolve the House when there was 
a new election. The towns of Edenton, New Bern, Wilmington, 
Brunswick, Bath, Salisbury, Campbellton, and Hillsboro were 
each in time represented by a borough member, chosen by the 
citizens of these incorporated towns. The law required that as 
many as sixty families must reside in a village before it was en- 
titled to this distinction. On one occasion, Governor Martin 


tried to evade this rule as a special favor to Tarboro, but the 
assembly refused to seat the man sent up, and the governor re- 
considered his claim of right in the premises. It was only by 
application to the governor and council that the number of 
borough towns was increased. 

The common law of England and the general statutes of that 
realm were early declared to be in force in North Carolina. 
The highest court was that of chancery, which consisted of the 
governor and five members of the council for North Carolina, 
from which appeal lay only to the king and the Privy Council 
in London. The governor could issue injunctions to stay pro- 
ceedings in courts, but no original process seems to have issued 
from this court of chancery. 

The General Court, composed of all the judges, sat twice a 
year at New Bern to hear appeals. The Superior Courts could 
grant letters of administration and appoint guardians, a power 
that also rested with the governor and inferior courts. All mat- 
ters in law and equity were cognizable in the Superior Courts, 
except small offenses against the criminal code and money de- 
mands not exceeding one hundred dollars in amount. 

The governor and council were also required to meet twice a 
year in what was called the Court of Claims. On these occasions, 
they inspected the applications for grants of the king's lands and 
made orders to the secretary to issue grants in fee-simple with 
the invariable covenant for the annual payment of quit-rents 
on the lands thus conveyed. The governor issued his warrant 
to the surveyor general of the province, who in turn transmitted 
orders to his county deputies, setting out the boundaries and giv- 
ing other necessary details. 

There were two treasurers for the whole province. One of 
these accounted with the sheriffs of the northern counties for 
such taxes as were intended for provincial expenses, while his 
colleague discharged similar functions in the southern counties. 
They were elected by the assembly and disbursed only under 
the direction of that body . The positions were considered of 
great honor and were sought by the most distinguished men. 

The receiver general collected the royal quit-rents, and was of 


less power and importance than the secretary, who not only 
made out all land grants, but appointed a clerk of the crown in 
each county and issued all civil as well as military commis- 
sions. The district clerks of the crown attended to the criminal 
processes in the Superior Courts. Another clerk, appointed 
by the chief justice, confined his attention to civil pleas and thus 
divided the business of the terms much after the fashion of the 
late clerks and masters in equity. The auditor acted simply as 
a check upon the secretary and the receiver general. 

In each county was a court of Common Pleas and Quarter 
Sessions. They were held by justices of the peace, and these 
were appointed by the governor and held their office during his 
pleasure. The jurisdiction of this court in criminal matters 
did not extend to offences for which the punishment was the de- 
privation of life or member, and in civil matters they only had 
cognizance of cases where the money demanded did not ex- 
ceed one hmmdred pounds. The oldest record of these inferior 
courts is to be found in the minutes of the Berkeley Precinct 
Court still preserved in the office of the Clerk of the Superior 
Court of Perquimans County. In the enumerated powers which 
it conferred upon the justices, it was enacted that they should 
be authorized "to enquire of the Good men of the province, by 
whom the truth may be known, of all felonious witchcraft, en- 
chantments, magic arts, trespasses, forestallings, re-gratings, and 
extortions whatsoever." This extract is interesting in that it 
shows the offenses which our forefathers considered worthy or 
deserving of punishment. 

It has been noted that the government of North Carolina 
during the Royal Period was very much like that of England, 
and that corresponding to the king, who was the executive in 
England, was the governor, who was the supreme ruler in the 
province, and responsible to the crown for all of his acts, and 
not to the people whose affairs he was to administer. As he 
was the supreme authority in the province, in a study of the 
government of the province of North Carolina, he is the logical 
one to claim first attention. 

The governor of North Carolina was appointed by the king of 


England on the recommendation of the Board of Trade. The 
methods by which these appointments were secured were similar 
to those employed in the other departments of the British public 
service in the days of the Whig ascendency. In a report sub- 
mitted to the Board of Trade in 1715, there is an interesting 
statement of the principles of such appointments : " Governments 
have bin sometimes given as a reward for Services done to the 
crown, and with design that such persons should make their 
fortunes. But they are generally obtained by the favour of 
great Men to some of their dependents or relations, and they 
have sometimes bin given to persons who were oblidged to divide 
the profit of them with those by whose means they were pro- 
cured, the qualifications of such persons for Government being 
seldom considered." Later on in the colonial era, however, ap- 
pointments were often made on more rational grounds, since 
with increasingly frequent communication between the colonies 
and the mother country, the former naturally exerted increased 
influence upon the choice made by the crown. The appointment 
of colonists to the governor's chair was not altogether uncom- 
mon in the eighteenth century. 

The governor's tenure of office may be considered under two 
aspects, that defined by the terms of his commission, and the 
practical aspect determined by actual conditions. His legal 
tenure, as stated by his commission, was during the king's pleas- 
Tire, with the formal limitation, imposed by English custom, that 
all patents terminated on the death of the king. 

The newly-appointed governor, on his arrival in the province, 
published his commission and then took the necessary oaths in 
the presence of the council. 

The governor of the Royal Province of North Carolina may 
be considered from two distinct standpoints. On the one hand, 
he was the centre of the local administration, the chief executive 
of the province ; on the other hand, he was the agent of a larger 
and higher authority, the guardian of interests broader than 
those of his single province. As will be seen later, it was not 
always easy, or even possible, to keep in harmonious action the 
two forces of local feeling and imperial interest. Indeed, their 


inevitable conflict constituted the chief difficulty of the govern- 
or's position. 

It is easy to see, then, that the first duty of the governor was 
to serve as a means of communication between the province and 
the home government. He recommended to the colonial as- 
sembly the legislation desired by the crown, and furthermore, 
he was expected to keep the home government informed on a 
wide range of topics connected with the condition of the prov- 
ince and its administration. He was the head of the whole 
administrative machinery of the province, and in this capacity 
watched all the parts of the system, and, so far as possible, di- 
rected its movements. 

It was his duty, not only to recommend desired legislation, 
but also to prevent the passage of all acts injurious to the inter- 
ests of the crown and the mother country. Whenever the prov- 
incial interest and the imperial interest should come into con- 
flict, his conrolling obligation was his duty to the crown. 

In addition to the various ways in which the governor acted 
as the representative of the crown, the extension of parliamen- 
tary control imposed upon him a gradually increasing number 
of functions of another kind, connected with the enforcement of 
the acts of parliament. One of the first navigation acts, the 
well known statute of Charles II, required the governor to take 
an oath to enforce all the provisions of the act, under penalty 
of removal from his office. 

As centre of the local administration, the royal governor of 
North Carolina was charged with many more duties. By the 
advice and consent of the council, he was empowered to grant 
lands, according to the terms issued by the crown or according to 
the terms of the acts of the legislature which the crown had 
approved. These grants, when sealed with the seal of the 
province and recorded in the land office, were legal as against all 
persons, even against the king himself.* He appointed, by the 
advice and consent of the council, men to fill all vacancies in the 
land office, and, in co-operation with the two houses of the legis- 
lature, enacted all the laws in regard to registration, alienation, 

"Colonial Records, Vol. Ill, p. 90-118. 


transfer, title by occupation, validity of patents, re-survey, rent- 
rolls, and the number of acres to be granted to any one person. 
Quit-rents and the conditions of escheat and forfeiture neither 
he nor the legislature could determine, as these were reserved 
as the crown's exclusive right.* 

He was required to administer the oaths and tests to the 
members of the provincial assembly and the council, and was 
given power to suspend any councillor for sufficient cause, but 
only with the consent of a majority of the council. He was 
given the power and duty of keeping the official seal of the 
province, and of administering the oath in reference to the 
king's person to whomsoever he saw fit. He was authorized to 
issue the moneys raised by acts of the assembly, and to expend 
this money for the support of the government. 

The governor also had all the powers that belonged to a cap- 
tain-general or commander-in-chief ; to levy, arm, muster, and 
command all persons residing in the province, to march or em- 
bark them for the purpose of resisting an enemy whenever oc- 
casion demanded it, and to transport the North Carolina militia 
to any American colony, if needed for its defence. His powers 
in the matter of defence was almost unlimited. 

He could call a General Assembly whenever occasion demand- 
ed it, and he and the council were to be the judges of the neces- 
sity. He had a negative voice in the passing of laws and ordi- 
nances by the assembly, and none could be passed without his 
consent. He could also prorogue or dissolve the assembly to 
prevent the passage of certain bills, f 

His judicial powers and duties were confined to establishing 
such courts of law and equity as he and the council deemed 
necessary for hearing and determining all cases, to the appoint- 
ment of all the judges except the chief justice, and to the par- 
doning of fines and forfeitures. He could not, however, displace 
a judge or justice without a sufficient reason, the sufficiency of 
such being determined by the Board of Trade and the Crown. 

*Raper, North Carolina, 
tC. R., Ill, 66-73. 


He was instructed to see that all persons committed to prison had 
the immediate privilege of the writ of habeas corpus.* 

The governor's support was provided in a number of ways, 
but the most important part of his income was his salary which 
was paid out of the somewhat uncertain and fluctuating quit- 
rent revenues of the province, f 

In addition to the salary, the governor had various other 
sources of income. The most important of these was perhaps 
the fees which were collected on a great variety of occasions, 
the amount of which was not at first fixed by law but regulated 
by "English custom," a vague limitation clearly liable to great 
abuses. These abuses continued in North Carolina until the 
passage of a law during the administration of Governor Johns- 
ton, and recommended by him, which provided for the regula- 
tion of fees by the legislature.^: Johnston's successor objected 
to the measure on the ground that it was inconsistent with that 
article of his instructions which authorized the governor to reg- 
ulate fees, but the Board of Trade decided that such legislation 
was not inconsistent with his instructions. 

This, then, in brief, is a sketch of the executive part of the 
royal government, the governor, his duties, powers, and rights. 
To some students of this period of North Carolina history it may 
appear that the governors of that time were, for the most part, 
worthless and vacillating, but one must bear in mind before so 
judging them that they were a part of an inefficient system, for 
the machinery of English colonial government in the eighteenth 
century lacked much in unity and dispatch. The Board of 
Trade was slow in making its decisions on colonial matters, 
and the law officers required still more time. The secretaries 
of the king did not pay much attention to many matters, though 
important. The records of North Carolina are full of evidence 
of the carelessness and dilatory habits of the home government. 
The governors, as a whole, however, were careful to keep the 
Crown well informed respecting colonial affairs. Most of them 

*C. R., Ill, 90-118. 
tC. R., Ill, 295. 
tC. R., IV, 229, 916. 
|C, R., V, 643, 756. 


attended to the administration of the province with much in- 
terest, though at times with little intelligence, their mistakes 
being mostly those of judgment. At times they adhered obsti- 
nately to the letter of their instructions and in so doing rendered 
their position and that of the Crown weak. They often forgot 
that the people under the proprietors had governed themselves 
almost without restraint, and often ignored the fact that a peo- 
ple with such a history would not readily yield to prerogative 

The two royal governors who achieved least for the home 
government as well as for North Carolina were Burrington and 
Martin, but in so judging them it must be remembered that 
each was governor of North Carolina at a time when an unusual 
amount of tact and judgment was necessary. Burrington be- 
ing practically the first governor of the royal province and 
consequently having to make the first attempts to uphold the 
royal prerogative, a theory, the spirit of which the colonists 
did not understand or appreciate. Martin was the last governor 
in royal North Carolina and as such had to face the revolution- 
ary spirit that had been growing in the American colonies for 
years, and which had been especially active in North Carolina. 

The governor was the head of the colonial executive of North 
Carolina during the royal period, but in the exercise of his pow- 
ers he was assisted, and to a certain extent checked, by an exe- 
cutive council of twelve members. These councillors were ap- 
pointed by the Crown, usually on the recommendation of the 
governor. The original rule as stated in the governor's in- 
structions, was that the governor should always keep before the 
Board of Trade a list of persons best qualified for appointment 
as councillors. The number required was originally six, but 
the instructions to Burrington in 1730 required a list of twelve 
eligible candidates. This rule was evidently not always ob- 
served; hence on the recommendation of the Board of Trade 
it was so modified that as each vacancy occurred, the governor 
should send in a list of any number of names, from which the 
crown might make its choice.* 

"Instructions to Dobbs, 1754. 


The governor, in his nominations for the council, was directed 
to see that certain qualifications were complied with. For ex- 
ample, the councillors were required to be men of good life and 
"well affected to Our Government/ 7 of good estate, and not 
necessitous persons or much in debt ; they were also required to 
be "inhabitants of the province.' 7 * Clearly the intention was 
to secure, as far as possible, the substantial men of the province, 
though undoubtedly many other elements had to be taken into 

The councillors, therefore, did not receive their powers from 
the people of the province, and hence were not so much inclined 
to enter into their feelings. They were largely under the con- 
trol of the governor, and their relations with him were usually 
close and friendly, for they both represented the same institu- 
tion, the crown, and were amenable to the same power. They 
were largely under the control of the governor. He had the 
right to suspend them for certain causes, although they might 
be removed only by the Crown. He could suspend them for fail- 
ure to discharge their duties, especially when such failure was 
accompanied by an absence from the province of more than 
twelve months without his consent. He was directed to send 
immediately to the Board of Trade the names of all councillors 
suspended by him, with a statement of the grounds of suspen- 
sion, but this arrangement left him so nearly unrestrained that 
it was afterwards found necessary to require that all suspensions 
should have the consent of a majority of the council, to which 
the governor was to communicate the reasons for his action. If, 
however, the reasons were of such a nature that they might not 
be properly commnuicated to the council, the governor was to 
transmit at once to the home government a full statement of 
the charges against the suspended councillors. 

Under these provisions the governor had considerable lati- 
tude in the exercise of the right of suspension, and indeed, even 
in the final removal of councillors his influence often prevailed. 
There can be little doubt that this power was often abused by 
governors who were disposed to take advantage of it to get rid 

"Instructions to Dobbs, 1754. 


of their opponents in the council, and to to put into their places 
persons who might be relied upon to support the governor's in- 
terest. This danger led to a tendency on the part of the home 
government to check more closely the governor's power of 
suspension, with the result that in several cases suspended 
councillors were re-instated by special order of the Crown. So 
in 1761 the king sent an order to restore John Rutherford to his 
seat in the council. It is true that this reversal of the governor's 
action was not common, but the fact that it was possible and 
actually took place was of no little significance. 

The councillors were not, as a rule, salaried officers. In 
general, like the members of the lower house, they had to con- 
tent themselves with per diem allowances during the sessions of 
the assembly. In 1757 the Board of Trade recommended an 
allowance of fifty pounds per annum to be paid to each member 
of the council out of the quit-rents of the province.* 

Having considered the organization, let us now turn our at- 
tention to its functions. These were of three general classes: 
In the first place, it was the executive body to assist, to advise, 
and in a measure to control the governor in the exercise of his 
executive functions. Secondly, it had some judicial powers, 
and constituted a court for the trial of certain kinds of offenses. 
Finally, it was the upper house of the provincial legislature. 

An accurate description of its powers and duties as an exe- 
cutive board is not easy, many matters being, in the absence of 
definite statements, determined by mere usage. A few of its 
executive duties, however, may be determined. 

The council was an executive body in that it was an adjunct 
to the governor, the president of the council acting as chief exe- 
cutive when the governor died or was absent from the province. 
As an executive board, the council was, of course, subject to 
the governor's call, for the conduct of business a quorum of three 
being required, f which in 1754 was changed to five. In execu- 
tive meetings the governor presided and proposed matters for 
consideration, but he was directed to allow the council freedom 
of debate and vote. 

*C. R., V, 787-788. 
tC. R., VI, 526. 


Another function of the council as an executive body is very 
clear it was an advisory board. The councillors were bound "at 
all times freely" to give their advice to the governor a for the 
good management of the publick affairs of the government," 
and were also to restrain as well as to assist the governor in the 
exercise of his powers. In the instructions to the governor was 
a long list of matters in which his power was limited by the 
proviso that he was to act only with the advice and consent of 
the council. This body, with the chief executive, issued the 
warrants and grants, decided upon the question whether lands 
should be granted to certain persons or not, and whether lands 
were escheated or forfeited. It was its duty also to see that the 
quit-rents were properly collected.* This council heard many 
complaints about the legality of grants, decided whether quit- 
rents were payable in certain products, and what should be the 
value of such products, summoned persons before them to show 
why they held or laid claim to lands, heard petitions for re- 
grants, erected a court of exchequer for adjusting all cases re- 
lating to the crown's revenue from land, and appointed assistant 
barons to the said court. 

The advice of the council was of course asked and given on a 
great variety of occasions and questions, though the extent to 
which the practice was carried naturally depended upon the 
personal characteristics of the governor on one side, and of the 
councillors on the other. Some governors excluded the council 
from the conduct of public affairs as much as possible, while 
others were inclined to throw responsibility upon it. The temp- 
tation to shift responsibility was particularly strong in questions 
of legislation. Indeed, governors often asked advice as to 
whether they might properly give their consent to particular 
bills, even though before coming to the governor at all a bill 
must have been previously passed by the council sitting as an 
upper house. 

The council also shared largely in the general administration 
of the province. It appointed administrators of certain private 

*Raper, North Carolina, p. 73. 


estates, and sat in judgment over the administration,* heard 
complaints against the officers of the province and at times ad- 
vised the governor to suspend them, heard and granted petitions 
for new precincts, ordered sheriffs to complete the collection of 
taxes by a certain time, and had the power of appointing a com- 
mittee to act jointly with a similar committee from the lower 
house in examining and auditing all public claims and ac- 
counts, f 

The council had many judicial powers and duties, but they 
were mainly of the nature of advice. It advised that commis- 
sions be issued appointing assistant justices of the general court, 
and that courts of oyer and terminer be held at certain times 
and places. With the governor, it issued commissions of the 
peace, appointing themselves, the secretary, attorney general, 
assistant justices, and the chairman of the precincts all jus-> 
tices of the peace. The governor with at least four members 
of the council, could act as a court of chancery and decide all 
cases in equity.:): 

The main legislative power of the council was to be found in 
its ability to hold up any legislative act until it gave its con- 
sent. It kept its own journals, and these give a great deal of 
evidence that the council played an important part in the law- 
making of the province. In most matters it had equal rights 
with the lower house, and in some it had greater powers. All 
bills were required to pass both houses, through three readings, 
and to receive a majority vote in each before they could go to the 
governor for his approval. Either house could make amend- 
ments to the other's bills, which caused frequent conferences be- 
tween the two. The right of rejecting all bills to which it did 
not assent gave the council a great influence which it exercised 
when no agreement over the amendments could be reached. It 
is seen, therefore, that the council had a two-fold law-making 
function, one as an executive, and the other as a purely legisla- 
tive body. It had the same right as the lower house to block 

C. R., Ill, 214-215. 
tC. R., Ill, 405-410. 
JC. R., Ill, 204. 


or hinder any legislation, in spite of the demands of the gov- 
ernor and of the other house. 

As regards efficiency, the council as it existed in royal North 
Carolina was not of the highest rank, though its general policy 
was one of support of the government. During the administra- 
tion of Burrington, the council did little but dispute over per- 
sonal or constitutional matters. Under the succeeding admin- 
istrations of Johnston, Dobbs, and Tryon, the council agreed for 
the most part with the governor, but even then was not as effi- 
cient as it should have been. Martin, the last of the royal 
governors, could not agree with the council at all, for the col- 
onists were beginning to show a rebellious spirit against Eng- 
land, and the councillors, in the main, took the side of the colo- 
nists. The lack of efficiency of this body was also caused by the 
continued absence of its members whenever they did not want to 
attend, for they were colonists and their responsibility to the 
crown did not rest very heavily upon them, for they could only 
be suspended for continual absence, and the majority of them 
did not mind that. 

In tracing the general relations of the council with the gov- 
ernor, much can be found both to its credit and discredit. As 
an executive body, it could not agree with Burrington,* in fact 
it disagreed with him so much that he wrote to the Board of 
Trade to the effect that some of the councillors offered more ob- 
structions to his administration than the lower house did. On 
one occasion, a member of the council, by name of Smith, left 
the province, and Burrington called the council to nominate his 
successor, he not only having been a member of the council but 
chief justice as well. At his call, only two members appeared, 
Jenoure and Porter, who not being a quorum, could not elect 
SL new member. Thereupon the governor asked these two about 
appointing others so that there might be a sufficient number to 
hold a chancery court. Jenoure readily assented to it, but 
Porter refused.f This led to a long discussion, during which 

*c. R., in, 150. 

fC. R., Ill, 196. 


no chief justice was appointed, for which the councillors were 
as much to blame as the governor.* 

Under Johnston and Dobbs, while never very efficient, the 
council acted in substantial agreement with the governor. 

The relations between the council and Governor Tryon were 
very harmonious. On one occasion he wrote that the council 
had acted well and uniformly for the Crown's interest, f Dur- 
ing the early part of Martin's administration, he and the council 
agreed upon most matters, but after 1772, the council was 
disposed to take sides with the people in their opposition to the 
principle of British control which he was attempting to compel 
them to accept and abide by. In April, 1774, he wrote to Lord 
Dartmouth that the conduct of the council as the upper house 
of the legislature at the last session was opposed to his admin- 
istration, that it was unbecoming, and calculated to injure the 
interest of the Crown. J 

To sum up what has been noted as to the position of the 
council in the royal province, it may be said that, although it is 
a mistake to suppose that the council was always or necessarily 
under the control of the governor, yet, as might have been ex- 
pected from its constitution, it was usually on the governor's 
side in his contests with the lower house, exercising on the whole 
a conservatice influence, and, although it was not a very efficient 
body, still, in the main, it contributed much to the good govern- 
ment of the province. It exercised a beneficient restraint upon 
the lower house of the legislature, prevented the governor from 
making many mistakes, and brought respect and dignity to the 
home government. 

The position of the executive the governor and council 
having thus been considered and its powers, duties, and acts 
discussed, as well as the function of the council as the upper 
house of the legislature, attention may now be turned to the 
other branch of the legislature, the assembly. 

This lower house was first provided for in the charters of 
1663 and 1665, and was in existence when North Carolina be- 

*C. R., Ill, 370. 

tC. R., VIII, 152-153. 

JC. R., IX, 969. 


came a royal province. After this, the lower house was pro- 
vided for in the commissions and instructions from the crown 
to the royal governors. 

The governor, by this commission, had other important pow- 
ers in the constitution of the lower house. In the first place, 
the calling of this body was left in his hands, subject, however, 
to the advice and consent of the council ; but no assembly could 
convene without his action. 

Elections to this house were held regularly in accordance 
with writs issued by the governor to the sheriffs directing the 
choice of a certain numbes of representatives from each dis- 
trict* During the early part of the royal period, this gave 
birth to the question as to whether or not the governor had any 
discretion in the issue of the writ, so far, for example, as to 
determine the number of members who should be returned from 
a particular district, or to grant the right of representation to a 
new district. The governor insisted that he had precedents for 
his position, but this claim the lower house denied, and finally 
went so far as to exclude members from new precincts not fixed 
by act of assembly, f Finally, however, the home government 
interfered ; the acts of assembly creating electoral districts 
being disallowed, and the principle was laid down that the right 
to elect members of the assembly ought to be conferred only by 
the Crown, a principle which was carried out in the form of 
proclamation issued by the governor in the king's name.:): 

The governor was ordered, in his commission from the home 
government, to see that the members of this branch of the legis- 
lature were chosen from the free-holders only, and he was for- 
bidden to allow them any protection other than of their persons 
during the session, or to allow them to adjourn without his 
consent otherwise than de die in diem except on Sundays and 

Owing to the fact that elections were held in accordance with 
the governor's writs addressed to the sheriffs, who were his ap- 
pointees, the governor had some opportunity to influence the 

*C. R., IV, 534. 
tC. R., Ill, 380. 
JC. R., V, 81-92. 


election of members. Indeed, corruption of this kind was dis- 
tinctly charged against several governors,* but this charge is 
supported by comparatively little direct evidence. 

On becoming members of this lower house, the representa- 
tives were required to take from the governor the oaths of 
allegiance and supremacy of the crown, f After the house met, 
the governor claimed some control over the organization of it, 
based on the apparently innocent provision that these regular 
oaths should be administered by him. In his opening speech at 
the beginning of each session, he outlined his policy to the rep- 
resentatives, spoke of their rights and duties, and made his re- 
quests. He allowed them to choose their own speaker and 
clerk, J to keep their journals, introduce, discuss and amend 
bills, but the final decision was in the power of the council and 

Each member of the house was paid nine shillings and six 
pence for each day that he served. He was allowed the same 
amount for each day that he spent in travelling to and from the 
place of meeting. Any member that failed to put in his appear- 
once on the precise day for which the house was summoned, un- 
less he was detained by some disability, was fined ten shillings. 
Any member, who, after making appearance, absented himself 
without permission from the service of the house, was required 
to forfeit forty shillings for each day that he so absented him- 
self, and was also made liable to the censure of the house for 

After the house had been organized, the governor still had 
great power over it, inasmuch as the continuance of its sessions 
depended entirely upon his will, at least so far as the terms of 
the royal commission could confer that power. The governor 
was authorized by his commission to adjourn, prorogue, or dis- 
solve all general assemblies as he might think necessary ; and by 
a later instruction, he was directed not to allow the assembly to 
adjourn itself except from day to day. 

In regard to the question of prorogation, it was held by the 

*c. R., ii, 159. 

tC. R., Ill, 66-73. 
JC. R., Ill, 540. 


law officers of the Crown that the governor might prorogue to 
any time or place; that he might even prorogue an assembly 
when not in session.* How was this power actually exercised ? 
In the first place, sessions of the lower house that proved re- 
fractory were often prorogued, in the hope that a short interval 
of consideration might bring the members to a more favorable 
mood.f Furthermore, it was charged by the assemblies, and 
probably with some truth, that the governor used this power 
merely as a means of harassing the house in the hope of forcing 
it to accede to his demands. There can indeed be no doubt that 
assemblies were sometimes prorogued in order to prevent them 
from taking action not in accord with the wishes of the governor. 

The question of dissolution now occurs. Prorogation merely 
ended a particular session; dissolution terminated the life of 
a house. It is therefore not difficult to see that the governor 
with this power of dissolution in his hands had a very effective 
weapon in his possession and so a very strong hold upon the 
house. This was the common method of getting rid of an ob- 
stinate house in the hope of securing one in its place that would 
prove more tractable. It was sometimes dissolved because the 
governor feared action that was inconsistent with his own in- 
terests. Of course the dread of dissolution must have had some 
influence upon the actions of members of the house who were by 
no means sure of being returned at a new election, but on the 
whole, it may well be questioned whether the dissolution of a 
refractory house brought the governor any great advantage in 
the long run. 

Another feature of the right of dissolution and perhaps on the 
whole a more dangerous one, was the power to refuse dissolution. 
If it was advisable to dissolve an unfavorable house, it was just 
as clearly desirable to keep a compliant one when once chosen, 
a consideration which often caused the same assembly to be 
kept in existence for several years. 

In addition to these constitutional means of influence, there 
was another effective method by which the governor acted on 

*C. R., II, 576. 
fC. R., VI, 243-244. 


the lower house of the legislature, namely through his power of 
dispensing patronage, a function that was undoubtedly of con- 
siderable importance. 

But the governor was not limited to this indirect influence; 
he was himself a part of the legislative system. He had the 
right to issue ordinances or proclamations of two classes, name- 
ly, those for the regulation of fees, and those for the erection of 
courts. The most common of the ordinances issued by him were 
those enforcing the provisions of statute or treaty, or those con- 
taining regulations regarding subjects which might fairly be 
considered matters of executive concern. An instance of this 
was the issuing by the governor in 1735 of a proclamation regu- 
lating the sale of liquor to the Indians.* 

The governor was furthermore, as has been said, a part of 
the regular legislative system of the province, acting with the 
co-operation of the council and the lower house; the comission 
empowered him, with the consent of the council and the lower 
house, to make laws not repugnant, but as nearly as might be, 
agreeable to the laws of England. 

Since the right of recommendation necessarily carried with 
it very little actual power, the governor was left to find his 
really important legislative function in the right to approve or 
to refuse to approve all bills passed by the council and assembly. 
The commission gave him a negative vote on all laws, statutes, 
and ordinances, "to the end that nothing may be passed by our 
said council or house to the prejudice of us, our Heirs and 
Successors." Furthermore, this veto was not merely suspensive 
there being no such thing as passing a bill over the governor's 
refusal to approve it. 

The governor was restricted in his right to participate in 
legislation in that there were certain kinds of bills that he was 
forbidden to approve, a precaution intended to protect in parti- 
cular imperial or British interests against injurious local legis- 
lation. He was not, for example, to allow the final enactment 
of bills for the issue of paper money, or for the imposition of 
discriminating duties on British ships or manufactures. 

*C. R., IV, 45. 


Having considered briefly the powers of the governor in rela- 
tion to the lower house of the legislature, let us now look at 
the powers which the house had in itself, both regarding the 
general government of the province, and regarding the governor. 

One of the privileges which the house claimed was that of de- 
termining the suffrage. What this was during the royal period 
it is impossible to judge, but as the royal government began 
with the principle of freehold suffrage, it would seem that this 
was the rule throughout the period. The house also claimed the 
right of making inquiries into the election returns of its mem- 

Besides these special privileges, the lower house also had 
certain specified powers, some of which the crown gave by vol- 
untary grant, while others came to it by custom or assumption. 
Along with the powers were their correlative duties. The lower 
house exercised great power in regulating territorial system, 
especially in excusing the colonists from the penalties of non- 
compliance with the regulations. During this period seventeen 
acts concerning land were passed by the house and agreed to by 
the governor and council and the crown, f These acts were con- 
cerning the proper settlement and cultivation of land, enroll- 
ment and registration, titles, rent-rolls, quit-rents, and the relief 
of those who failed to comply with the laws and regulations. 
Not only did it take a leading part in passing the acts, but 
it exercised a general supervision over the administration of the 
whole land system. 

The lower house had a great deal to do with the general ad- 
ministration of the province. It acted jointly with the upper 
house, or council, in inspecting and settling all public claims 
and accounts. It ordered all the public treasurers to lay their 
accounts before it, and often appointed and controlled them, at- 
tempted to ascertain and regulate the fees of all officers, prescrib- 
ing in what they should be paid and at what rates, complained 
of the bad conduct of officers and of the lack of courts, made 
addresses to the governor and the Crown concerning the laws, 

*C. R., Ill, 288-289. 
jRaper, North Carolina, p. 94. 


currency, trade, lands, rents, and tenants of the province, and 
appointed and controlled for the most part an agent who re- 
sided in England. The governor in his opening speeches en- 
couraged most of this and asked the representatives to promote 
the welfare of the province by establishing a good system of 
trade, religion, and education. This request of the governor 
gave them a legal right to look after the general administration 
of the province in several matters, and they assumed other rights 
as belonging to themselves by virtue of the fact that they were 
representatives of the people who were governed and who paid 
the taxes. Chief among these rights was the appointment and 
control of the treasurers of the province. The governor was, 
naturally, greatly opposed to this claim and declared that the 
house in making it was assuming to regulate the executive and 
was, therefore, taking away from his his constitutional rights.* 
But in spite of the protest of the executive, the lower house ap- 
pointed and controlled most of the treasurers. 

This body of representatives also had a great part in passing 
the acts providing for the organization of the militia and for 
defence. It was to the lower house that the governor applied 
for soldiers, arms, supplies, and forts, either for defensive or 
for offensive warfare, to which requests the lower house gener- 
ally acceded. In cases of insurrection in the province, such as 
that of the Regulators in 1771, the lower house took a promi- 
nent part in suppressing them. So it was that the house, while 
in theory it had but little military power, exercised great influ- 
ence over military affairs, for the governor was very often forced 
into a position where he must have soldiers and money, and he 
could do nothing towards getting them without the sympathy 
and aid of the house, to gain which he often gave up many of 
his prerogatives. 

The part which the lower house had in the passing of acts for 
the government of the province was great, but it was often hin- 
dered in the exercise of these powers by the governor's power to 
adjourn, prorogue, or dissolve it. 

Perhaps the greatest power which the lower house exercised 

*C. R., VI, 1253. 


was in regard to judicial matters. It made resolves about the 
proper or improper method of administering justice, and, with 
the upper house, it decided on juryment for the counties, and it 
often petitioned the governor to pardon violators of the law. The 
history of the royal period shows a constant attempt on the part 
of the lower house to deal with the qualifications and time of 
service of the judges, in which it was strongly opposed by the 
Crown, and consequently the governor, and in which it never 
attained any signal success. 

Besides these general powers in the administration of the 
province as a whole, the lower house also exercised a control 
over the governor. In the first place, it was a check upon the 
governor through its very existence as a critical body empow- 
ered to inspect accounts, and eager to detect abuses in the 
provincial administration; furthermore it gave to the public 
sentiment of the province a constitutional means of expression ; 
it organized public sentiment and thus made it effective. The 
value of such influence is easily under-rated, but an assembly 
which performs this function, even though it be without any 
power of legislation, or without the control of the purse, has 
yet within its hands a weapon against arbitrary government 
which is not to be despised. 

By far the most important check upon executive action pos- 
sessed by the house was certainly that exercised through its 
power over the purse. Inasmuch as no government can main- 
tain itself without money, it is evident that a body that has 
the power to grant or refuse supplies holds the key to the situa- 
tion. Such was the case in North Carolina during the royal 
period. No principle was more firmly held than this, that no 
taxation within the province was legal without the consent of 
the lower house, and this doctrine came more and more to mean 
the domination of the lower house, not only in all financial 
legislation, but by giving the house a means of controlling the 
governor, which more than counteracted the measure of power 
which he possessed over it. In this control of the financial situa- 
tion, the assembly had a formidable weapon which it used, not 
only as an instrument of security against abuse of executive 


power, but also as a means of extorting from the governor im- 
portant powers properly belonging to the executive. 

There is one phase of the subject regarding the control of the 
house over the purse which requires a special treatment, namely, 
the salary question. The Crown had very early adopted the 
practice of throwing the support of the provincial government, 
including the granting of official salaries, upon the provincial 
legislature, and the North Carolina legislature had passed a 
resolution which ordered the payment of such salaries "out of 
the revenue arising by the Quit-rents and the sale of Land."* 
It soon became clear, however, that if salaries were to be granted 
by the house, this body must in the long run control the amounts 
of those salaries, and must even have the power to withdraw 
them if it saw fit. This was a dangerous situation from the 
standpoint of the home government, which soon awoke to an 
appreciation of the fact that, with a governor dependent for 
his support upon the temporary grants of the assembly, the 
Crown would lose one very strong hold upon the colony, for the 
assembly often used its power improperly. 

There can be no doubt that it is the general tendency of the 
legislature, when once firmly established, to encroach upon the 
proper functions of the executive, especially by minute super- 
vision and control; and that in the case of the North Carolina 
assembly this tendency was greatly strengthened by the miscon- 
duct of governors. The popular policy soon became, therefore, 
to insure as far as possible the governor's dependence upon 
the lower house by the system of temporary grants, and to weak- 
en the executive as far as possible by the transference of many 
of its proper functions to the house. 

As has been shown, the assembly had gained its power chiefly 
through its control of the purse; it was therefore natural that 
the first assumption of executive powers by the house should be 
in the department of finance. The house, as the body invested 
with the exclusive right of granting the people's money, felt that 
it also had the right, in its representative character, to determ- 
ine how that money should be spent. The representatives claim- 

*c. R., in, 295. 


ed the right, not only to appropriate money in general terms, 
but to define narrowly and in detail the uses to which it was 
to be put, holding that it was their right and duty to provide 
all necessary safeguards for a proper application of the money 
to the purposes for which it was intended. It is clear that this 
view might easily lead to an assumption by the lower house of 
powers properly executive, which it eventually did, for Gov- 
ernor Dobbs on several occasions complained to the crown that 
payments of public moneys were made without his warrant.* 
Thus the assembly had in many cases deprived the governor of 
even that limited control over finance involved in the require- 
ment of his warrant for the payment of public debts. 

From this fundamental assumption that the house as the rep- 
resentative of the people was the constitutional guardian of the 
people's money, there was only a short step to the claim by that 
body of the right to appoint those officers who were charged with 
the collection, custody, and disbursement of the public funds. 
The prevailing doctrine of the North Carolina assembly is 
summed up in the following resolution passed in 1753 : "Re- 
solved, That it is the inherent and undoubted Right of the Rep- 
resentatives of the People to raise and apply Monies for the 
Service and Exigencies of Government, and to appoint such 
Person or Persons for the receiving and issuing thereof as 
they shall think proper, which Rights this house has exerted, 
and will always exert, in such manner as they shall judge most 
conducive to the service of His Majesty, and the Interests of His 

The most important exercise of this assumed right was the 
appointment by the house of the provincial treasurer, which was 
usually done by formal act of assembly; sometimes, however, 
being done by a simple resolution of the lower house. Even 
when appointment was made by formal act of the assembly, the 
lower house clearly had the real choice ; for such a bill, like all 
others having to do with financial matters, would originate in 
the lower house, and amendments by the council would be sure 

*c. R., vi, 320. 

fC. R., V, 758. 


to meet with resistance. In 1760 the council ventured to change 
the name of the treasurer as given in the bill from the lower 
house, and the latter agreed to make the change, saying, how- 
ever, that its consent that time should not be construed by the 
council as establishing a precedent of the right of the council 
to propose or nominate persons for that office, and resolved "that 
it is the inherent right of this House to nominate persons to be 
appointed to the office of Public Treasurer."* The home gov- 
ernment made a virtue of necessity by instructing the governor 
that, although the appointment of treasurers by act of assembly 
was irruglar, yet it would be improper to set aside a usage of 
such long standing. 

This appointment of the treasurer by the lower house took 
the control of the provincial finance almost entirely out of the 
governor's hands and placed it in those of an officer who was 
generally regarded as "solely and entirely a servant of the as- 
sembly.'^ The treasurer was often a person of considerable 
importance as is shown by the fact that in 1737, Governor Bur- 
rington wrote that Edward Moseley, the treasurer, was also 
speaker and manager of the lower house. J 

The interference by the lower house with the appointing 
power was not confined to the choice of treasurer, but extended 
to a large number of other offices, chiefly those concerned with 
the collection or payment of public money. 

From the administration of finance and the appointment of 
officers, the lower house was gradually led to encroachments up- 
on another department, the control of which may with even 
greater propriety be regarded as the exclusive right of the chief 
executive. If there is any function which especially requires 
a concentration of authority in a single head, it is certainly the 
command of military forces and the conduct of military opera- 
tions. Yet even into this field the lower house forced its way, 
availing itself of the exceptional opportunities for such en- 
croachments afforded by the frequent wars of that period. The 
urgent need of supplies for military purposes occasioned by 

*C. R., VI, 508. 

tPownall, Administration of Colonies, p. 52. 

tC. R., Ill, 151. 


these wars enabled the assembly, in making its grants of money, 
to impose the most stringent conditions. This power it used 
in three general ways : In the first place, in granting military 
supplies it often prescribed in detail the purposes for which 
they were to be used, and dictated the course of military opera- 
tions and the disposition of troops. Secondly, it left in the 
hands of committees of the lower house the disposition of these 
founds, often with a very considerable control of the conduct of 
military enterprises. Finally, through the appointment and 
removal of officers, it went so far as to interfere with the dis- 
cipline of the troops. It did not often, if ever, claim the right 
directly to appoint military officers in the strict sense of the 
term, but it sometimes interfered seriously with the discipline 
of the troops by attempting to enforce the removal of such offi- 
cers as it did not want. It is clear that the assembly did in mil- 
itary affairs seriously encroach upon the governor's preroga- 
tive. This attitude, or situation, may be summed up with the 
remark of Chalmers in regard to the last of the Indian wars: 
"The king's representative acted merely as the correspondent 
of his ministers. The war was conducted by commitees of As- 

In regard to the interference of the assembly with external 
relations, a few words will suffice. These external relations 
were chiefly of two kinds ; inter-colonial interests, and Indian 
affairs. As to questions arising between North Carolina and 
the neighboring colonies, the appointment of commissioners to 
deal with boundary disputes was often made by the house, and 
finally received in some cases the sanction of the crown itself. 
In regard to relations with the Indians, the house showed a sim- 
ilar disposition to assert its control in the form of demands on 
the governor, as, for instance, that he should take the council 
of several members of the lower house in his negotiations with 
the Indians. 

It has now been seen to how great an extent the lower house 
in various ways encroached upon essentially executive functions 
of the governor. These usurpations, or whatever else they may 

"Chalmers, Revolt, pp. 300-301. 


be called, probably reached their height during the last of the 
Indian wars, when the pressure upon the governor was of course 
greater than at any other time. This policy accomplished the 
end for which it was taken up, namely, the weakening of the 
governor, who if not personally an object of distrust and suspic- 
ion, was at least looked upon as the representative of interests 
at variance with those of the colony. 

But it must not be concluded that the governors were content 
with such a course of events and that they sat idly watching the 
slow but sure encroachment of the lower house on their execu- 
tive powers, for they were, on the contrary, fighting the advanc- 
ing powers of the body with every means in their power, and 
were constantly engaged in conflicts with the representatives of 
the people. This conflict, increasing in intensity each year, 
makes up the greater part of the history of the royal period. The 
governor represented first the monarchical idea of prerogative, 
and secondly, the principle of imperative control, whether rex- 
ercised by king or parliament. The assembly, on the other hand, 
stood not merely for the representative principle in government, 
but also for distinctly local interests. The policy of the colonial 
legislature at its worst expressed a particularistic spirit, 
disregarding sound considerations of national or imperial pol- 
icy; at its best it stood for the vital principle of local self-gov- 
ernment and for the protection of legitimate American interests 
as against a narrow English policy. 

The royal government of North Carolina reproduced on a 
smaller scale the constitution of the mother country. As the gov- 
ernor felt the responsibility of maintaining within the province 
the prerogative of the crown, so the lower house found support 
for its privileges and encouragement for its aspirations in the 
example of the English House of Commons. The colonial records 
of North Carolina reproduce in surprising detail the parliment- 
ary conflicts of the mother country. Nevertheless, these ambi- 
tions of the colonial legislature met with but little sympathy 
from British statesmen of either school; the colonial preroga- 
tives of the crown were identified with the political supremacy 


of England, and therefore had the support of English Whigs 
as well as English Tories. 

Some of these disputes were of a trivial nature, but most of 
them were based on vital constitutional points. 

The first important question that came up during the royal 
period that showed the breach that had come between the execu- 
tive and legislative branches of the government in North Caro- 
lina was one concerning the administration of the territorial sys- 
tem, which was precipitated in 1731 by Governor Burrington's 
hostile attitude. The assembly in this year adopted a resolu- 
tion in which it declared that there was not coin enough in the 
province with which to pay the rents, as ordered by the latest 
instructions from the crown, and that, therefore, such payments 
should be made in such valuable commodities or bills as were 
convenient, at a proper rate of exchange. The governor in- 
sisted that the payments should be made in coin or in bills at a 
very low rate of exchange, and that payment in commodities at 
the rate desired by the assembly was to the great disadvantage 
of the crown. The assembly valued the commodities at high 
rates, and demanded that the bills be accepted at a small dis- 
count. A conference was held in May, but nothing was accom- 
plished on account of the unwillingness of either side to yield.* 

In the legislature which met two years later there was a re- 
opening of these disputes. The assembly still held to its original 
demands that quit-rents should be paid in commodities, while 
Burrington maintained that they were due in coin. His atti- 
tude was such as to keep the quarrel at fever heat, and the re- 
sult of it was that the lower house finally made the claim that 
the deed of 1688 from the proprietors, known as the "original 
deed," or the "Great Deed of Grant," was a permanent and bind- 
ing document, arid that, therefore, the crown had no right to 
give instructions concerning quit-rents which were contrary to 
this deed.f This claim practically denied the right of the 
crown to regulate the territorial system, an assumption which 
was without legal or constitutional basis, and was virtually an 

*C. R., Ill, 143-144, 279-280. 
fC. R., Ill, 598-599. 


assertion by the assembly of virtual independence. In demand- 
ing that quit-rents should be paid in commodities, they were 
ignoring the rights of the Crown and depriviag it of some of 
its legitimate dues, and the governor in refusing assent to such 
demands was doing his duty. But, on the other hand, he was 
going to extremes in claiming that quit-rents should be paid in 
specie only, for there was very little coin in the province, and 
to demand of the colonists payment in specie only was a hard- 
ship on them and a mistake on the part of the governor. 

Governor Johnston proved himself to be more open to com- 
promise than his predecessor had been, and so his disputes with 
the lower house were not as serious as those of Burrington. 
They were caused, however, by the same assumptions on the 
part of the assembly and the executive, which finally led to an- 
other declaration on the part of the house that the governor's de- 
mand that quit-rents be paid in specie was illegal. It asked the 
governor to have the rents collected according to the customs 
of the province until a law to that effect could be secured.* 
Johnston immediately informed the house in a message that its 
ideas concerning quit-rents were contrary to the king's rights 
and privileges, because the "original deed" was not irrevocable, 
having been revoked by the proprietors in 1760 ; and that North 
Carolina had adopted the crown laws when she became a royal 
province, f His arguments, however, failed to convince the 
members of the house, and no act was passed by that body. 

In regard to fees, Johnston and the lower house did not often 
dispute. Still they had different opinions concerning the 
amounts of fees, in what they should be paid, and who had the 
right of regulating them:): From 1736 to 1774, the lower house 
at times made complaints about certain officers demanding and 
taking exorbitant fees, but for the most part the governor was 
as ready as the representatives to correct such abuses ; and dur- 
ing this period, the evidence, both of a positive and negative 
nature, would indicate that the lower house and the governor 

*C. R., IV, 109-110. 
tC. R., IV, 110-114. 
JC. R., IV, 173-178. 


were willing to compromise on fees, as they did on territorial 

The conflicts arising from the question of fees did not origi- 
nate in the fee system itself, but had reference to the form of 
their payment and the parties who should regulate them; they 
were, therefore, conflicts arising chiefly from the fiscal side of 
ihe system. Both parties, the executive and the lower house, in 
the main agreed that there should be a system of fees. They 
were willing to allow certain fees to the governor, the officers in 
chancery and admiralty, the attorney general, marshals, col- 
lectors of customs, registrars, surveyors, escheators, constables, 
justices of the peace, and clerks of the different courts. Fees 
constituted the chief or only compensation of most of these offi- 
cers. On the question that they should be allowed, the executive 
and the lower house agreed, but in regard to some of the details 
of the system, they entertained very different views.* 

The disposition and control of the public revenue were sub- 
jects of much controversy between the house and the governor 
during the larger part of the royal period. During April, 1731, 
the lower house, in reply to the governor's speech, discussed 
fiscal matters and declared that no public moneys should be 
issued except by the governor, the council, and itself. One of 
Burrington's instructions directed him to allow no money to be 
issued or disposed of except by his warrant issued upon the ad- 
vice of the council, but he was not to allow the lower house to 
review and examine the accounts. This instruction was intend- 
ed to take the distribution of public funds largely away from 
the lower house and to allow it no further control than that 
which it might have from the reviewing of expenditures. The 
house refused to accept such an instruction, at least Burring- 
ton's interpretation of it, and claimed that the act of 1715, con- 
cerning the public treasurer, gave more power than that in- 
volved in reviewing and examining accounts. Burrington 
would not recognize such a claim, and held that his instructions 
from the crown had legally superseded all the laws of the pro- 
prietary period. During his whole administration, conflicts 

*C. R., Ill, 159-168, 270-272, 496-498 ; VI, 1097 ; VII, 796. 


upon this subject continued between himself and the house. It 
claimed the privilege, which it had enjoyed during the pro- 
prietary period, of having a large share in tha distribution of 
public money, while he insisted rigidly upon the letter of his 
instructions concerning their disposition.* ~Not only did the 
representatives refuse to recognize his claims, but they pro- 
ceeded to carry their own into action. They appointed and, 
therefore, controlled the public treasurers; they had already, 
by an act of 1729, established that office in eleven precincts, and 
the control of these was in their power. 

But it was upon judicial problems that the struggle between 
the governor and the house became great and serious. These 
problems became important in May, 1760, when the house pre- 
sented to Dobbs a bill for the establishment of superior courts 
of pleas and grand sessions. He rejected it, and then laid the 
bill, with some of his instructions, before the chief justice for 
an opinion. He was instructed not to appoint any person to be 
judge or justice of the peace without the advice and consent of 
at least three councillors signified in council meeting, and that 
all commissions to judges and justices of the peace be during 
his pleasure only. Dobbs claimed that the bill violated the 
Crown's rights as expressed in the said instructions. He also 
argued that the house, in nominating the associate justice, had 
taken from him and the council the right of appointing justices, 
and that the clause which made the commission during good 
behavior was an open violation of the rights of the Crown. This 
argument, though legally sound, did not convince the chief 
justice that the bill should be rejected. He advised the govern- 
or that the bill, although containing some strange ideas, should 
be accepted, as it was the best one possible under the circum- 
stances, f Neither did the governor's argument cause the house 
to change its position, and the struggle continued. But the 
principal effect of it was that the province fell into great dis- 
order because of the lack of courts, and by the end of 1762, 

*C. R., Ill, 265. 

tC. R., VI, 246-248, 408-409, 413-417. 


Dobbs assented to bills for superior courts as for inferior courts 
for two years, in spite of several objectionable clauses.* 

The governor and the house also became involved in a con- 
flict over the questions of representation in the assembly, and 
what should constitute a quorum, matters which may for con- 
venience be called constitutional privileges. The questions, 
though never critical, were at times annoying, and were never 
fully settled. In 1750 the house claimed that the Orown had no 
right to compel counties and towns to take out charters of in- 
corporation from the governor before they were entitled to 
representation. Dobbs declared the claim contrary to the rights 
of the Crown, and opposed to his instructions from the Crown, f 
He was correct in his position, being backed up by specific in- 
structions from the Crown and so the house soon ceased to press 
its claim. The question of the quorum was far more important. 
In 1760 Dobbs asked that the house act with fifteen as a quorum, 
It refused to do so, and denied his right of determining what 
should constitute a quorum, claimly that as peculiarly its own. 
Acting on this assumption, it sometimes would allow twenty-five 
to act and again it would not make a move towards discharging 
business without a majority of its entire number.;): In taking 
such a position, the house was acting directly contrary to the 
Crown's instructions, which specifically stated that fifteen mem- 
bers should constitute a quorum. But as this was a point of 
considerable importance, it would not obey the crown, and would 
not act without a majority, or at least twenty-five of its num- 
ber, whenever the whim struck it. It was much more difficult 
for the governor to control from twenty-five to thirty-five mem- 
bers than fifteen, and with a small quorum, it was thought, he 
might easily pass acts against the interests of the people, while 
with a large one it would be practically impossible. 

We have now seen that the conflicts between the governor 
and the lower house arose from their different points of view 
on questions of land, fees, money, courts and judges, and con- 

*C. R., VI, 890-892. 

fC. R., VI, 245. 

C. R., VI, 319-324, 344-345. 

C. R., V, 1111. 


stitutional privileges. The fact has been made apparent that 
the governor and the council were practically a unit in their 
point of view and in their attempt to maintain, the rights and 
interests of the Crown. The attitude of the executive toward the 
lower house was, as we have seen, for the most part, supported 
bj precedents and was in substantial accord with the royal 
instructions which constituted the chief guide of his official 
conduct. In some respects they were very specific, and the 
governor was required to act according to them if possible. In 
other respects, much was left to the interpretation and discretion 
of the governor. These conflicts arose between the governor and 
the house over both the specific clauses and those in which the 
executive had discretion. The house in questioning or denying 
the one was attacking the policy of the Crown, but in disputing 
over the other, it was merely doubting the interpretation of the 
officers of the Crown who resided in the province. The house 
was also influenced by the fact that it felt as its duty the main- 
tenance of the rights and interests of the colonists. Although 
many of its claims appear to be more in the nature of assump- 
tions than founded on a strong legal basis, such a stand against 
a higher power, a stand which grew more and more determined 
each year, was caused by the fact that there was beginning to 
creep into the minds of these representatives, as well as of the 
colonists generally, the idea that there was something greater 
than English law as applied to a colony the principle of free- 
dom and democracy and it was this strong and growing desire 
for independence that caused these sturdy North Carolinians 
to oppose the encroachments of the executive as the representa- 
tive of all that appeared to them tyrannical and oppressive. 
These quarrels were the first rumblings of the approaching storm 
that was to sweep away all vestiges of English government in her 
thirteen American colonies. For generations these colonists had 
bowed their necks under the yoke of illegal and unjust exactions, 
slaving as it were, for their masters across the seas, but they 
were now beginning to desire and feel the glad sunshine of free- 
dom, and arising at last from the heavy slumbers and barbarous 
dreams that had so long haunted their minds, were about to join 
in glad acclaim to usher in the Golden Era of Humanity and 
the Universal Monarchy of Man. 




In any study of land tenure in Colonial North Carolina dur- 
ing the Proprietary Period, one fact must be kept constantly 
in mind: namely, that the territory of North Carolina was 
given by Charles II. to the eight Lords Proprietors. The en- 
tire control of the colony, its government, its laws, its property, 
its lands, was placed absolutely in the hands of the Proprietors, 
subject only to the limitation that laws and government were 
to be in accordance with English law and loyalty to the English 
Crown. The colony wtas the property of the Proprietors, prop- 
erty granted by the Crown of England, property with which 
they could do as they pleased. It is the purpose of this paper 
to trace throughout the Proprietary Period the system of land 
tenure in the colony of North Carolina. 

The Proprietors were not the first to have claims on land 
in North Carolina. In 1630 Charles I granted to his attorney- 
general, Sir Eobert Heath, all that land extending from the 
coast westward for more than one thousand miles and lying be- 
tween the parallels of 31 and 36 north latitude. The province 
was to be called Carolina. No particulars concerning any set- 
tlement made under this grant have been found. Attempts at 
settlement were made, however, for from the Virginia records 
it appears that one William Hawkes was in Virginia as "gov- 
ernor of North Carolina," and that leave was granted by the 
Virginia legislature to colonize in Carolina to one hundred per- 
sons from Virginia, "freemen, in being single and disengaged 
from debt." Whether or not these settlements were made at 
the instigation of Heath, is not known. Whatever else they 
were, they were certainly abortive, since Heath's patent was 
later declared void by the King and Privy Council of England 
on the express ground that its purposes had never been fulfilled. 

As a matter of fact, lands in Carolina seem to have belonged 

*This study won the second prize offered in 1912 by the North Carolina So- 
ciety of Colonial Dames of America. 


only to the savage Indians, with the colony of Virginia the only 
civilized government exercising any sort of authority over 
them. Virginia seems to have had power to make grants in 
Carolina, for in 1653 the assembly of Virginia granted: 

"Upon petition of Roger Green, clarke, on behalf of him- 
self and inhabitants of Nansemand River, -'10,000 acres of 
land unto 100 such persons who shall first seate on Moratuck 
or Ronoke river and the land lying upon the south side of 
Ghoan river and the branches thereof; Provided that such 
seaters settle advantageously for security, and be sufficiently 
furnished wiith ammunition and strength, and the said Roger 
Green the rights of 1000 acres of land and the choice to take 
the same where it shall seem most convenient to him, next 
to those persons who have a former grant in reward for his 
charge, hazard and trouble of first discoverie and management 
of others for seating those southern parts of Virginia." 

This, however, ungrammatical, is the record of the grant for 
the first permanent settlement in what was later to be North 
Carolina. It would seem that the territory of Carolina was 
considered to be under the control of Virginia. Yet "the 
earliest grant" made in North Carolina of which we have any 
copy wias made by Kilocacanen, king of the Ysepin Indians, 
on March 1, 1662 to George Durant. By it the Indian king 

"For valeiable consideration of satisfaction received with the 
consent of my people sold, and made over to George Durant a 
Parcell of Land -betwixt the aforesaid Bounds of Samuel 
Pricklove and the said Creek; [called in the grant Awoseake] 
thence to the Head thereof." Durant was "to have and to 
hold the quiet possession of the same forever with all the 
rights and privileges thereunto forever from me or any Persons 

It will be noticed that the "first grant" mentions another 
made to Samuel Pricklove. No record of such a grant has 
been found, but its mere mention is proof enough to show that 
purchase direct from the Indians was a way of securing land 
before the great grant was made to the eight lords proprietors. 


The Virginia governor was instructed by the Crown to make 
grants in Carolina. In 1663, Governor Berkeley made a grant 
of 750 to Thomas Eelfe in consideration of the fact that he 
had transported fifteen persons to Carolina. Relfe was to pay 
each year at the feast of St. Michael one shilling per fifty 
acres. Similar grants were made to Kobert Peel, John Harvey, 
John Haydin, John Jenkins, and George Catchmyed. Lands 
obtained at the same time from the Indians, however, had the 
prior claim, for there is a record of the same George Catch- 
many, or Catchmyed, who, having obtained 'a grant from 
Berkeley, and having found that portions of it overlapped the 
land obtained from the Indians, surrendered this land without 
compensation. Indeed, in 1773 fthe assembly of Carolina 
passed an act to allow every "inhabitant of this County [Albe- 
marie] the privilege to have the first survey of the land he 
liveth on and layeth claim to adjoyninge to him having rights 
to lay upon it sufficient to hold the same and the first seators 
to have the privilege to the first survey." The fact seems to be 
that, although Virginia made grants in accordance with the in- 
structions from the Crown, the land in Carolina really be- 
longed to the Indians; that titles received from Virginia were 
not valid against those received from the Indians. 

However this may be, the ownership of the land was settled 
once and for all when on M>ay 23, 1663, Charles II. granted to 
Edward, Earl of Clarendon ; George, Duke of Albemarle ; Wil- 
liam, Lord Craven ; John, Lord Berkeley ; Anthony, Lord Ash- 
ley ; Sir George Carteret ; Sir William Berkeley ; and Sir John 
Colleton, "all that territory or tract of ground, situate, lying 
and being within our dominions of America, extending from 
the north end of the island, which lieth in the southern Vir- 
ginia seas, and within six and thirty degrees of the northern 
latitude, and to the west as far as the south seas, and so 
southerly as far as the river St. Matthias, which bordereth 
upon the coast of Florida and within one and thirty degrees 
of northern latitude, and so west in a direct line as far as the 
South sea aforesaid; together with all and singular forts, . . . 


rivers, isles, and islets belonging to the country aforesaid; and 
also all the soil, lands, fields, woods, mountains, .... 
situate or being within the bounds . * . ., jvith all the fish- 
ing, .... 'all veins, mines, quarries, . . . .of gold, 
silver, gems, precious stones, .... found within the 
countries, isles, and limits aforesaid." 

In the charter which the king gave to the proprietors when 
he made them this great grant of territory almost absolute 
powers were conferred. The territory was erected into the 
"Province of Carolina". Charles granted full and absolute 
powers, by virtue of these presents, to them and their heirs for 
the good and happy government of the said province, to ordain, 
make, enact, and under their seals to publish any laws whatso- 
ever, either appertaining to the public state, or the private 
utility of particular persons." These laws were to be executed 
upon all persons within the said province. The proprietors were 
to have ample authority to see to the execution thereof. Every- 
thing connected with the enactment and execution of laws was 
placed in their hands, the only limitation being that the laws 
were to be "consonant to reason, and, as near as can be con- 
veniently, agreeable to the laws and customs of our kingdom 
of England." During the interregnum of the assembly pro- 
vided for, the proprietors, or their deputies, could by ordinance 
make laws for the people, which laws were binding. 

To encourage emigration to the colony and to secure the ra- 
pid settlement of the province, freedom of emigration was given 
to all "leige people" within the British Empire. Still another 
provision of the charter in keeping with this idea of encourage- 
ment, and, at the same time, showing how absolutely the Crown 
surrendered whatever rights it may have had, is shown in the 
provision that all settlers and people living within the province 
might "inherit, or otherwise purchase and receive, take, hold, 
buy, and possess, any lands, tenements, or hereditaments with- 
in the same places, and them may enjoy, occupy, and bequeathe ; 
as likewise all liberties, benefices, and privileges of this our 
kingdom of England and of our other dominions aforesaid, 
and may freely and quietly have, possess, and enjoy, as our 


leige people born within the same, without the least molestation, 
vexation, trouble, or grievance of us, our heirs and successors." 
Freedom to load and unload freights and imports was given the 
proprietors. They were given the privilege of importing free of 
duty silks, wines, almonds, "oyl", and olives. Privileges to erect 
forts were given. The money secured from the duty on imports 
was to go not to the Crown but to the proprietors. 

The proprietors at their ple'asure were given the right to 
"assign, alien, grant, demise, or enfeof the premises, or any 
part or parcells thereof, to him or them that shall be willing 
to purchase the same, and to such person or persons as they 
shall see fit .... in fee simple or fee tayle; or for a 
term of life or lives, or years, to be held .... by such 
rents, services, or customs as shall seem meet." The Crown 
renounced forever all control in the matter of the grant or sale 
of lands, the province being given to the proprietors to do with 
it whatever they chose. 

These extracts from the charter of Charles II., are enough to 
show that Carolina had been given outright to the propietors. 
The history of the colony and of everything connected with it 
is from this time forth until 1728 the history of the proprie- 
tary government. We shall now see what the proprietors did 
with the territory thus given to them. 

The proprietors promptly set about seeking to get the province 
settled. On August 12, 1663, several "Gentlemen of the Barba- 
does" offered to settle in Carolina if the proprietors would give 
a tract of land about thirty miles square and would make cer- 
tain other "encouragements". They agreed, however, to bear 
the expense of settling the land thus given. In answer to this 
on August 25, 1663, the proprietors issued a set of proposals to 
all "that will Plant in Carolina". They agreed in these propo- 
sals to allow a colony to settle on Charles Eiver near Cape Fear 

on the larboard side. . . . if on any other 

river on either side, 20,000 acres being reserved to the proprie- 
tors." The colony was to fortify the entrance of the river. Of 
the colonists, thirteen were to be named to the proprietors, from 
which number a governor, six councillors, and six deputy coun- 


cillors were to be chose. Two freeman out of every parish or 
other division of the colony were to be chosen to form an assem- 
bly which was to make laws subject to the advic^ and consent of 
the governor and council, and in accordance with English law 
and custom. 

Land was to be granted on the following conditions : 

"We will grant to every undertaker for his own head, one 
hundred acres of land, to him and his heirs forever, to be 
held in free and common soccage; and for every man-servant 
that he shall bring or send thither, that is fit to bear arms, 
armed with a good firelock musket, perfored bore, 12 bullets to 
the pound, and with 20 pounds of powder and 20 pounds of 
bullets, fifty acres of land; and for every woman servant, 30 
acres ; and to every man-servant that shall come within that time 
10 acres at the expiration of his time ; and to every woman-ser- 
vant 6 acres at the expiration of her time. Note that we in- 
tend not hereby to be obliged to give proportions of land above- 
mentioned to masters and servants, longer than the first five 
years, to commence at the beginning of the first settlement. . . 
We do expect by way of acknowledgement, and toward the 
charge that we have been and shall be at, 1 half penny for every 
acres that shall be granted as aforesaid, within the time limited 
and expressed." 

In their instructions to Governor Berkeley, the proprietors 
declared it to be their wish that the plots described above should 
be adjoining in a line along the river. By this means they 
hoped to have two hundred armed men within each mile and a 
quarter square. Berkeley was instructed to set aside 20,000 
acres for the proprietors. He was further instructed to allow 
the settlers, if they wished it, three to five years in the payment 
of their quit-rents. Those who had previously bought land 
from the Indians were to be paid by the settlers who secured 
the land. 

The governor and council provided for were given the duty of 
issuing warrants for lands granted. These warrants were to be 
entered with the surveyor-general before delivery. The surveyor 
was to run out the land and certify to the secretary the bounds 


of the territory granted each person. This certificate was to be 
recorded by the secretary. In his turn, the secretary was to 
certify what the, surveyor had done to the governor and council 
who should then put under seal the land granted by the secre- 
tary. The governor was instructed to "persuade and compell 
those people [who had previously bought great tracts of land 
from the Indians] to be satisfied with such proportions as we 
allot to others." For the proper surveying and recording of 
these lands, the proprietors gave instructions for the appoint- 
ment of a secretary, a chief register, and a surveyor-general. 

In the same letter of instructions, dated September 8, 1663, 
Berkeley was told that "Carelyle Island, lying near Roanoke 
and Chowan rivers" had been granted to Sir John Colleton, one 
of the proprietors. 

Whatever settlements were made by the "Severall Gentlemen 
of the Barbadoes", they did not prove permanent. The above 
account was given in order to show on what grounds the proprie- 
tors were willing to make grants of land, and what inducements 
they were willing to offer. In 1665 another proposal to make a 
grant was made to John Yeamans. This grant is of more inter- 
est in the history of South Carolina than in that of North Caro- 
lina, for it was on Charles River that the Yeamans settlement 
was made. Nevertheless the proposal to grant in Clarendon 
County also contained the amount of land to be granted and the 
conditions thereof in Albemarle County, or North Carolina 

If the settlers came to the county of Albemarle, eighty acres 
of land were to be given to each freeman and eighty to his wife 
if he had one. For each man-servant brought, the settler was to 
get eighty acres; for each woman-servant, forty acres. These 
portions were to be given to those who came at once. Smaller 
portions were to be given to. those who came later forty acres 
to a freeman who came in the third year of settlement. 

Land in both Clarendon and Albemarle counties was to be 
held on the following conditions: All of it was to be taken up 
and settled immediately. For thirteen years one able-bodied 
man-servant or two women-servants were to be on each one 


hundred acres. Three years were allowed for the completion 
of this settlement. The lands were to be divided by general 
lot into plots, none of which were to be less than 2200 acres, 
none more than 22,000 acres. One-eleventh of each plot was 
to be reserved for the proprietors. On every twenty-fifth of 
March one half-penny for each acre received was to be paid 
to the proprietors. Lands for churches, forts, highways, and 
public buildings was to be free of the quit rent. 

From this it would appear that the proprietors, according to 
their knowledge of the country and their understanding of con- 
ditions meant to do all in their power to settle the province 
quickly. ~No purchase money was required to be paid for the 
lands granted, as it was given free of charge except for the 
annual quit-rent. But the differences in the quantity granted 
in Virginia and in North Carolina and the differences of con- 
ditions on which land was granted in the latter territory at 
once aroused opposition. By June, 1665, the surveyor-general 
for Albemarle, Thomas Woodward, wrote the proprietors a 
letter in which he pointed out their mistake and told them that 
the restrictions were hurting the colony. He pointed to Mary- 
land as a comparison, and said that conditions in Albemarle 
would have to be made lighter if the population was to increase. 
Following this letter, in 1666, the assembly of Clarendon peti- 
tioned the proprietors to redress; 1, The undecimal way of 
division of the lands ; 2, The half -penny per acre for all lands ; 
and 3, The injunction on penalty of forfeiture of keeping one 
man on every one hundred acres. 

The petition was successful, for in 1668 the proprietors in a 
letter of instructions to Samuel Stephens, at that time governor 
of Albemarle, told him that they would "consent and do grant 
that the inhabitants of the said County do hold their lands of us 
the Lords Proprietors upon the same terms and conditions that 
the inhabitants of Virginia hold theirs." The governor and 
council were given full power to grant such proportions" of lands 
as by our instructions and Concessions. . . . bearing date 
of October, 1667". The surveyor's warrant for the land, signed 
by the governor and a majority of the council, and having fixed 


on it the seal of the County, was to be good and effective title 
to land. 

Previous to this, however, in the year 1665, Charles had 
given a second charter to the proprietors in which their terri- 
tory had been largely increased. All land from the northern end 
of Currituck Biver, 36 30' west to the "South Seas," south to 
29, and west again to the "South Seas' 7 , was given to them. 
Full powers to erect provinces and counties, grant lands, enact 
and execute laws were, as formerly, given to the proprietors. 
Other provisions were in the main like those of the previous 

The governor was the representative of the proprietors in the 
province, and through him they carried on the business of grant- 
ing lands. Charles granted the whole territory to the proprietors 
and they, in turn, issued proposals or statements of conditions 
on which they would grant lands to settlers. In the beginning, 
as we have seen above, these proposals were made to promoters 
like the gentlemen of the Barbadoes or Yeamans. Then, as 
the County of Albemarle became settled by purchase from the 
Indians or by grant from Berkeley, governors of Albemarle 
were appointed, and were given power, through letters of in- 
structions from the proprietors, to sell, let, convey, and assure 
lands in the County. Land was at first granted in large quan- 
tities to promoters, then to individuals. In both cases in the be- 
ginning the land was granted free of purchase money price, the 
buyer having to pay only the small annual quit rent. In the 
first case, the land was granted direct by the proprietors ; in the 
second, by the proprietors through the governors. Thus the 
proprietors maintained absolute control over their territory, 
at least at the beginning of its settlement. 

Samuel Stephens was appointed governor of Albemarle on 
October 1, 1667. He was given "absolute power and authority 
from us and in our names to lett, sell, convey, and assure such 
lands in our said County to such person or persons and for such 
Estate and Estates, and with such provisoes, conditions, and 
lymitations as we in our Instructions and Concessions, 
have directed." These instructions were: The chief register, 


or the secretary, was to keep exact entries of all grants of lands 
from the proprietors to settles, all convey ances* of lands from 
man to man, all leases of lands by landlords to tenants, and do 
all other things as instructed by the proprietors through the 
governor. The surveyor-general was to lay out and bound all 
lands granted and records of these surveys were to be kept. All 
who subscribed allegiance to the king were to have the right to 
hold lands. An assembly of the freeman was to be chosen, 
which by act was to lay taxes on lands, prescribe the quantity 
of lands to be allotted to every freeman or servant, provided, 
however, that such grants did not exceed sixty acres to each free- 
man as much to his wife, sixty acres to every master for each 
armed male servant, fifty acres for each woman servant. Such 
grants were made on condition that one able-bodied servant be 
kept on each one hundred acres for thirteen years and that the 
land be settled at once. The land was to be divided into plots 
of not more or less than 2200 acres. Of these plots, one-eleventh 
was to remain in the hands of the proprietors. A warrant from 
the governor was to be given to each person to whom land was 
granted, and the lands were to be held on payment of one half- 
penny for each acre, payable on the twenty-fifth of March. 

Concerning lands, we find the assembly of Albemarle in 1669 
passing the following acts: Prohibiting the sale of "Eights or 
Rights to land untill he shall hath been two compleate years at 
least an inhabitant of the County' 7 ; "that no person for the 
space of five years next ensuing shall survey or cut out above 
650 acres of land in one devidend" ; "that if any person or per- 
sons that have bestowed any labour on any Land within the 
County shall not repair to it and seat the same within 6 months 
after the publication hereof, then it shall be lawfull for the 
Governor and Council to let it out to any other person to doe it." 

The proprietors had long been seeking some general, funda- 
mental system of government for their province. Such was 
furnished them in 1670 when John Locke gave them the Fun- 
damental Constitutions. This was a system of government 
based primarily on land tenure. According to the Funda- 
mental Constitutions, the province was to be divided into coun- 


ties. Each county was to be sub-divided into eight seignories, 
eight baronies, and four precincts of six colonies each. Each 
seignory, barony, and colony was to consist of 12,000 acres, 
the eight baronies being the share of the proprietors. Thus 
three-fifths of each county was to be left in the hands of the 
people. There was to be a system of nobility the Palatine, 
landgraves, and casiques all based on the amount of land 
held. There were to be as many landgraves as counties and 
twice as many casiques. Every manor was to contain from three 
thousand to twelve thousand acres in one entire piece. Land- 
graves had the power to make grants of land for twenty-one 
years only. A lord of a manor might sell his holdings to any- 
one else, a privilege which denied to the proprietors and land- 
graves after 1671. Freemen were to be subject to the lord of 
the manor. The marriage of a leet-man and woman was to be 
celebrated by the gift of ten acres of land. In every county 
there was to be a sheriff who had to own at least five hundred 
acres of land, and in every colony a constable who had to own 
at least one hundred acres. 

For the next twenty-eight years the proprietors struggled to 
enforce the Fundamental Constitutions but to no avail. The 
principles laid down in them were too closely akin to those of 
feudalism, and were in no way suitable to the conditions facing 
settlers in America. They were out of date and absolutely 
impracticable. Governor after governor was instructed to carry 
out the principles of the Constitutions, but the land in practice 
was never divided into artificial divisions provided for. The 
Fundamental Constitutions are of small historical value to-day 
except in so far as they show what the proprietors would have 
liked to have done with their possessions. 

In 1679 John Harvey was president of the council of Albe- 
marle, and as such, the representative of the proprietors. In- 
structions were sent him to have the surveyor-general divide the 
county into squares of 12,000 acres. This was of course in 
accordance with the Fundamental Constitutions. To all the 
free persons coming to the province before the year 1684 over 
sixteen years of age, sixty acres of land were to be granted. 


For every able-bodied male servant sixty acres were to be grant- 
ed, and for every other sort of servant, "fifty akers". Warrants 
from the president of the council were to be given settlers on 
taking up lands. According to the Fundamental Constitutions, 
the quit rent was to be one penny per acre, but because of the 
fact that a number of settlers had grants from Governor Berke- 
ley of Virginia, at one farthing per acre, and some at one half- 
penny per acre, in accordance with the former instructions of 
the proprietors, Harvey was ordered to allow these settlers to 
continue to hold their lands at the old rate. By all who could 
show evidence of having obtained grants from Governor Berke- 
ley before December 25, 1663, land was to continue to be held 
at one farthing ; by those holding grants previous to the present 
instructions (1678-1679) land was to continue to be held at one 
half -penny per acre. Back rents were to be collected, however. 
The holders under previous grants had to pay from the time at 
which they received their grants. 

In accordance with these instructions, Harvey issued patents 
to those who had received grants from Governor Berkeley. On 
November 27, 1679, he issued a patent to John Varnham, who 
produced a grant from Berkeley for two hundred and fifty acres 
issued in 1663. Yarnham was given the usual property rights 
to this land. He was to pay, according to the patent, "ye every 
29 day of September, according to the English account for every 
fifty Acres of land hereby granted 1 shilling of lawfull English 
money; provided the land be not seated within one year after 
date hereof. That then this patent be void." A like patent 
was given by Governor Jenkins on Feburary 5, 1679, to Thomas 
Relfe whose patent from Governor Berkeley was mentioned 
above. Thus the proprietors maintained absolute control of 
their property. The only valid titles were those obtained from 
the proprietors. 

There was, however, all this time general dissatisfaction in 
the County of Albemarle at the conditions on which land was 
granted, the quit rents, and the favoritism shown the southern 
part of the province. The proprietors had agreed to lighten 
the conditions some time before, but the new conditions, as we 


have seen, were if anything even more stringent. In 1670 
letters and petitions were received by the proprietors in protest 
against the fact that the northern county had received "but a 
tenth part of what your southern parts have had." Rents were 
always difficult, almost impossible, to collect. The county was in 
a constant state of turmoil. This dissatisfaction finally in part 
led to the Culpepper Rebellion. This insurrection, however, has 
little interest to us in connection with the subject of this paper 
save that it did not reduce quit rents or make the proprietors 
less anxious to collect them. At a council of the proprietors 
held may 22, 1683, the governor and sheriffs of Albemarle 
were ordered to "require and receive Quitrents, Leveys, fees, 
and all other publick dues from the inhabitants of Currituck." 

In 1681 Henry Wilkerson was appointed governor of Albe- 
marle. He was instructed to grant the same quantities of land 
as before and on the same conditions of quit rent payment; 
namely, one penny per acre. Holders of the Berkeley grants 
were to receive the same consideration as outlined in the in- 
structions to Harvey. Wilkerson was further instructed to 
choose four judicious men who had in no way been connected 
with the late rebellion, with himself as the fifth man, to hear 
and determine all suits that should be brought by persons claim- 
ing to have been dispossessed of their estates. Such suits had 
to be brought by residents within six months; by non-residents 
within two years. These instructions were carried out, accord- 
ing to a letter of Sothel, then a proprietor and governor, to the 
other proprietors. That they were not justly carried out, how- 
ever, is shown in a letter of the proprietors to Sothel in 1684 
in which they reprimanded him for his bad conduct. He was 
soon afterwards dismissed from the office of governor. 

In 1689 Phillip Ludwell was appointed governor in the place 
of Sothel, and was instructed to settle all claims against Sothel 
by means of a court of four impartial men. He was, as was 
customary, instructed to carry out as far as possible the provis- 
ions of the Fundamental Constitutions. In a set of private in- 
structions, Ludwell was told that the proprietors, since a num- 
ber of persons in the colony were unwilling to pay quit rents and 


desired to buy their lands outright, had given power "to our 
Trustees for granting land to sell six thousand acres and pass 
grants of the same to such persons as shall first J^ave payed the 
purchase money in pieces of eight after the rate of five shill- 
ings the piece of eight to. ... our receiver which you are 
to encourage men to do as much as you can." 

Ludwell was, however, dismissed in 1694 for granting lands 
at too small a quit rent. Archdale was appointed in his place. 
In order to encourage settlement on the southern part of Albe- 
marle Sound, Archdale was instructed to make grants at moder- 
ate quit rents not less, however, than one penny per acre. 
He was further instructed, with the consent of three or more of 
his deputies, to sell land in Albemarle for what he could reason- 
ably obtain not under ten pounds per thousand acres, reserv- 
ing an acknowledgement of five shillings per thousand acres 

On these conditions land was granted and held. The proprie- 
tors had nothing to do with the land after it was granted save 
to see to the collection of their quit-rents. The people willed and 
sold their lands without interference, the records of the court 
being full of suits between individuals in which the proprietors 
did not figure at all. For instance, at the Court of Albemarle, 
September, 1694, Major Alexander Lillington and Mrs. Susanah 
Heartly obtained an attachment against the estate of Captain 
George Clarke because of a debt of 35, 19s. due from Clarke 
to William Wilkerson for whom Lillington appeared. In 1693 
Stephen Pace and John Foster appointed William Glover their 
attorney for a sale of their plantation to Alexander Lillington. 
The attorney was to make acknowledgement of the sale at the 
session of the general court. It was thus seen that land in Caro- 
lina, after it had been granted by the proprietors, passed from 
their control. It was at the court of the colony, not at the coun- 
cil of the proprietors, that property rights were proved. The 
proprietors, through their governors and other deputies, con- 
tinued to make grants, and the people taking possession of the 
land held it as their own property. 

The proprietors had trouble enough in their attempts to col- 


lect the quit rents. They came in 1702 to the point of allowing 
the sale of land with only a nominal quit rent, twelve pence 
per thousand acres. This, the governor was allowed to settle 
"by Patents or Indentures and by such methods as you our 
said Governour with any three or more of our deputies shall 
see fit soe as when money cannot be had a true vale may be 
settled in the Best of such commodity es as the County is capable 
of producing." Continued instructions were sent to the gover- 
nors to collect the rents, an almost impossible task, for people, 
not only did not pay their rents for lands granted by the pro- 
prietors, but even began to take the tracts of land without 
grants. In some cases lands were never paid for, and quit rents 
were not thought of. Already petitions were coming in to have 
the proprietary government abolished. 

Land was still very plentiful in Carolina, and was so readily 
granted that Virginia complained that this was the cause of the 
loss of many of her inhabitants. The unpatented land in that 
colony was south of "Black-water Swamp" and even this was 
shut up by orders of the government. This caused many fami- 
lies, especially young people, to move to Albemarle. In Caro- 
lina the proprietors still exercised their rights to make grants 
and in 1709 instructed Tynte to have the surveyor-general mea- 
sure out five thousand acres for Able Ketechty a landgrave 
at ten pounds per thousand acres. No grants exceeding 640 
acres could be made save by special permission and warrant 
from the Lord Palatine and four of the proprietors. 

In 1711 the proprietors isued instructions to Edward Hyde, 
governor of Albemarle, in which they ordered him to send a 
full account of his rents, what amounts were due, and from 
whom. In addition, he was to send accounts of the amount of 
land sold and to whom sold. On account of the abuse made, 
as they said, of the privilege of taking up land in Carolina by 
exorbitant and illegal grants made to several persons, the pro- 
prietors ordered all sales or grants of lands to be prohibited 
except such as should be made at their Board at the instance of 
the governor. During the period of seven years next succeed- 
ing, however, they instructed Hyde to allow purchase of land, 


not exceeding 640 acres in amount, at the rate of twenty shill- 
ings for each acre and ten pence yearly quit rent for every hun- 
dred acres. In 1711 acts were passed by the assembly ordering 
Gary to appear and account for the money collected by him on 
the quit rents due. All persons holding lands were ordered to 
appear before certain designated officers and give account for 
their lands. The proprietors seem to have exerted considerable 
influence is connection with these acts. 

The last great grant of land in North Carolina by the pro- 
prietors was made to Christopher DeGraffenried, a Swiss noble, 
who agreed to plant a colony of Swiss and one of German Pala- 
tines in North Carolina. The agreement between DeGraffenried 
and the proprietors was entered into on October 10, 1709. De- 
Graffenried and his partner, Lewis Mitchell, were at their own 
expense to transport six hundred Palatines to Carolina. With- 
in three months after their arrival in the colony, two hundred 
and fifty acres of land were to be surveyed and set out for each 
family, the farms to be as contiguous as possible and the land 
divided by lot. For five years the Palatines were to pay no 
rent, but after that period had elapsed each family was to pay 
DeGraffenried and Mitchell the yearly quit rent of two pence for 
every acre. The latter were to furnish grain and provisions 
and a certain quantity of cattle, hogs, sheep, and farm imple- 
ments during the first year for which the Palatines were to 
repay them. 

The proprietors agreed to grant to DeGraffenried and his 
partner ten thousand acres on or between the Neuse and Cape 
Fear rivers at ten pounds and a yearly quit rent of five shillings 
for every one thousand acres. One hundred thousand acres of 
land near by were to be reserved for the proprietors for twelve 
years. None of this could be touched by any other persons, but 
either DeGraffenried or Mitchell could buy it during the first 
seven years at the rate mentioned above. One of the two was 
to buy five thousand acres and become a landgrave. On Septem- 
ber 3, the warrant for the grant was made out. DeGraffenried 
was to have a lease on all royal mines and minerals within the 
province of North Carolina to discover and work them for a 


period of thirty years, the products to be divided into eight 
parts, one-half to the proprietors, one-half to DeGraffenried for 
five years after discovery, but after five years, the proprietors 
were to get five-eights of the whole. 

The grant was made and the survey completed. The Pala- 
tines were located by the surveyor-general on a tongue of land 
between the Neuse and Trent rivers, where afterwards was 
founded the town of New Bern. The colony did not prosper, 
the Palatines suffering from sickness and want of clothing and 
good food, the avarice of the colonial officers, the rebellion of 
the time, the Indian attacks, the turbulent colonists, the failure 
of promised help to arrive, and the desertion of DeGraffenried. 
In time, however, the colony met better fate and prospered 
despite its early troubles. 

To meet the debts incurred by reason of the Indian war, the 
colony of Albemarle had to resort to the issue of paper money, 
and issues, when ouce begun, continued throughout the Pro- 
prietary Period. In 1729 40,000, were issued, of which 
10,000 were to be applied to the redemption of former issues, 
the remainder to be lent out at six per cent interest on land 
security, the whole to be paid back in fifteen years. 

At the crisis of affairs in the colony immediately after the 
Tuscarora outbreak, the proprietors, instead of extending a help- 
ing hand, demanded that their rents be paid in silver, and this 
at a time when the colonists had been compelled to make ordi- 
nary articles of trade legal tender at certain fixed rates. From 
time to time they issued instructions to their governors, heard 
complaints, and ordered redress, but the laws governing proper- 
ty were almost wholly made by the council and assembly. The 
colonists had but little love for their proprietary lords and paid 
little heed to their wishes. 

The proprietors vacillated in their policy towards the colony. 
By orders issued from Craven House, January, 1712, it was 
directed that no land should be sold in the colony for the future 
but what was paid for at the Board. Then on September, 3, 
1713, because of petitions received from the colony, they con- 
sented to revoke this order prohibiting the sale of land except 


by special warrant, and allowed warrants to be issued as usual. 
Again in 1716, the proprietors decided that "tenants ought to 
be held to their covenants in their Grand Deed in relation to 
the payment of their Quit Eents but that all the purchase money 
now due for land should be paid in Sterling Money or 16 
pennyweight the Crown or in produce of the country equiva- 
lent thereto." And the proprietors resolved to put a stop to 
the selling of lands in North 'Carolina but at their own Board. 
This time it was not the proprietors who revoked the order, but 
the governor and council on petition of the lower house. They 
were "unanimously of the opinion that the permitting of the 
people to occupy the vacant lands on payment of certain rent 
until the Lords Proprietors' further pleasure be known will 
not only strengthen and increase the Settlement of this Colony, 
but also cause a very great addition to the Lords Proprietors' 
annual revenue." No special effort was made to gain any 
statement of this "further pleasure". The proprietors were 
absentee proprietors and their absence was keenly felt and en- 

The proprietors, in truth, had little more to do directly with 
the government of the colony after this time. From time to 
time they issued instructions to their governors concerning the 
quit rents or to order certain laws to be changed, but they had 
little real influence in the affairs of the colony. The real 
government was in the hands of the council and assembly, the 
governor himself, although he had considerable power and in- 
fluence, being regarded as a suspicious person, and with him 
the assembly was almost always at strife with the advantage on 
its side. Almost every law connected with lands, their granting 
patenting, sale, and inheritance, was made by the legislative 
body and forced upon the governor. It is to the laws of the 
period then that we must turn for further information. 

The council in 1713 was composed of Thomas Pollock, presi- 
dent, Thomas Boyd, Nathan Chevin, Christopher Gale, and 
Tobias Knight. In that year we find it prohibiting the survey 
of lands within one mile of Marattock River, or the issue of 
.grants and patents, or the survey of land within twenty miles 


of Cape Fear River. We find it ordering that all persons in 
Bath County who held lands without having paid for them, 
and who did not pay for them by December 25, 1713, should be 
deprived of their holdings. The council also ordered that 
several persons should be empowered to take an exact account 
of all land held by all persons in the colony. 

The council was continually issuing orders concerned with 
land. In May, 1713, it ordered that as several persons had 
taken up lands before the orders from the proprietors forbid- 
ding this, these persons should be allowed to keep their holdings 
by paying for them at the rate of sixpence per hundred acres. 
This quit rent was only half of that hitherto charged according 
to the instructions of the proprietors. The council further 
declared that rents were due from the date of the survey, despite 
the fact that patents were sometimes not issued until consider- 
ably later. When petitions came in from the people of Bath 
asking for more time in which to pay for their purchases, they 
were readily granted. 

It is interesting to know the approximate size of the farms at 
this time. From the journal of the council in 1713, it is found 
that a Captain Fred Jones had estates of 4700 acres on Morat- 
tock River, and two tracts of 440 and 600 acres respectively on 
Neuse River. One Richard Evans had a tract of 350 acres in 
Perquimans district. Anthony Alexander had a tract of 150 
acres. There is in Pollock's letter-book an account of the pur- 
chase of 15,000 acres at Hill Creek. This, by the way, had not 
been paid for. It was an exceptionally large tract, the average 
size of holdings running from 300 acres to 650 acres. 

The council made other rulings in connection with land. In 
1714, it ordered that no lapsed patents should be granted for the 
future for any settled lands in Bath County until further orders. 
Owners of property there were to have liberty to provide and 
secure payment for same. Upon petition from the Palatines 
who had been brought over by DeGraffenried, and who had suff- 
ered much in the Indian war, the council ordered that each 
family might take up four hundred acres at the rate of 10 per 
thousand acres with two years to make payment. The case 


was ordered to be presented to the proprietors in the best light. 
Land thus taken up was not to lapse for non-payment until the 
answer of the proprietors was received. By 1718 the council 
came to the point where it signed blank patents to land, order- 
ing the surveyors to make full reports as to the situation and 
extent of the lands taken up. 

Eegistration of the land taken up and also of that conveyed 
by sale or inheritance was recorded at the sessions of the general 
court. The court records are full of such proceedings as : 

"Captain John Pettiver in Open Court acknowledged ye 
conveyance of a Tract of Land lyeing on the South Shore in the 
precinct of Chowan unto Mr. Antho Hatch and Mr. Geq. 

'Ordered to be Eegistered' ". 

"Apower of attor. from Mary Spellman to Augustus Scar- 
brough was proved in Court by oath of Mr. Thos. Passingham 
by vertue of wch. Said power Said Augustus Scarbrough ac- 
knowledged a Conveyance of 300 acres of land more or less 
lyeing upon the fork of ye Creek known by the name of Lakeres 
Creek unto Robert Harman. 

'Ordered that the said Conveyance wth. the Said Power of 
attorney be Recorded/ ' 

The two houses of the legislature also joined in acts upon 
the subject of land. One of these ordered that all grants should 
be paid for within three months. This act was criticised by the 
proprietors but was allowed to stand. In 1726 an act declared 
that the fee of twenty shillings which had been allowed to the 
governor for each patent should henceforth be illegal. 

Land in North Carolina has thus been seen to have been at 
first wholly under the direct control of the proprietors, and was 
granted direct from them. As the colony prospered and popu- 
lation grew, the proprietors lost a great deal of their control, 
the direct government of the colony and the direct control of 
the land passing into the hands of the council and assembly. 
These bodies, with the governor, it is true maintained a semb- 
lance of acting under the directions of the proprietors, but in 


fact land, its granting, sale, and conveyance, was practically in 
the hands of the legislative body of the colony with only a small 
control by the proprietors. This became more and more true 
as the proprietors lost interest in their great grant from the 
Crown and with it the power to control its destiny. In 1729, 
the proprietary government came to an end, the Crown taking 
control of the colony, and henceforth to the Revolutionary War, 
in the matter of land tenure the colony was to deal directly with 
the Crown of England. 




Cooke, Charles S 
The Governor